Darpan Potdarin vs Emperor

This is the appeal by a woman named Darpan Potdarin (aged between 50 and 55 years) who has been convicted and sentenced to death by the Sessions Judge of Bhagalpur sitting in the Santal Parganas for the murder of her daughter Titwa (aged about 24 years),

In the early hours of the morning of 19th February last, the Sub-Inspector (P.W. 11) stationed at the police station of Sarath in the district of Dumka was awakened by a chaukidar Raghoo Mirdha (P.W. 10) of village Dhoro Dumar, about three miles from the thana. The chaukidar said that there had been a murder in his village. The Sub-Inspector came out and saw a girl lying on a cot with bleeding injuries. He asked her who were her assailants, but she could not speak. There were also present the accused Darpan and some villagers of whom four have been called as witnesses; that is to say, Barjoo Poddar (P.W. 6), Muhammad Hakeem Mirza (P.W. 7), and the before-mentioned chaukidar Raghoo Mirdhan (P.W. 24).

In addition to these, other Potdars (men) are said to have been present and also two persons Sakroo Mahto and Loku Raut. The accused Darpan Potdarin was questioned by the Sub-Inspector and her statement was taken down and lodged as a first information. The first information however does not embody the complete statement of Darpan, for as will be shown later, she made additional statements to the Sub-Inspector after the first information report. She stated that she was the wife of Bhagirath Poddar (P.W. 9), that she had come with certain villagers (whose names I have mentioned) and her daughter who was lying wounded on the cot. She said that on the previous night she and her daughter after taking their meal were Bleeping on separate cots on the southern verandah of their house, that her youngest son Jiblal (P.W. 4) aged ten years was sleeping with her and that the daughter Titwa was sleeping with her own child aged two years; that after the moon had set, she (the informant) went into the courtyard for natural purpose and then heard her daughter crying out �mother, mother, I am killed, I am killed''. She ran to the verandah and saw two men running away and passing out through the western wall of the compound in front; that she lighted a lamp and found that her daughter was wet with blood, with her neck and cheek out, and that she could not speak. That she and her son raised a cry and the villagers including the chaukidar came up and saw what had happened. That her daughter''s son Ganesh Poddar (not called as a witness) had gone away on the morning of the day before to celebrate the sun god festival at village Sirsa (which is 7 or 8 miles from this village) where her eldest son lives and works as a goldsmith. That the informant''s husband had also gone to Sirsa at noon of the day before. That she suspected that someone from the village had committed the crime but she could not recognize the men whom she saw running away. The Sub-Inspector noted also that the chaukidar had found a goldsmith''s iron anvil saying that this was found near the daughter''s cot. It bore no blood stains, but the Sub-Inspector took it and kept it.

The Sub-Inspector in cross-examination stated that he had questioned Darpan and asked her if she had any quarrel with anybody. She replied that she had had a quarrel with Moti Poddar (P.W. 8) who had called her a witch on the Wednesday preceding the day of occurrence, and she told him further that Moti''s wife had become insane and it was in that connexion that Moti bad called Darpan a witch. She also stated to the Sub-Inspector that her husband Bhagirath had illicit connexion with the wife of Dhano Poddar and that Titwa''s character was bad. The Sub-Inspector prepared an injury report of the daughter Titwa and sent her to the Sarath hospital. She had about a dozen injuries consisting of incised wounds on the neck and face which would seem from their nature to have been inflicted with a knife. There was also a simple fracture of the left clavicle. The Sub-Inspector also examined the person of Darpan, the first informant.

In his evidence he says that be conducted this examination at the thana at about 9 A.M., that is to say, after the taking of what has been called a dying declaration of the injured girl at the hospital, but we are not sure that the Sub-Inspector is correct in stating that he made the examination of Darpan after the taking of such dying declaration; he may have done it after taking the first information report. He was not cross-examined on this point as he should have been, but at whatever time she made the declaration he found the following state of affairs. There were marks of dried blood at the corner of each eye and there were also blood-stains on the sari, but the sari was being worn inside out and the stains were on the side which she was then wearing next to her body. They consist of drops of blood in 13 or 14 places and looked as though they had been spurted on to the garment. There were also stains on the upper wrapper which had a smeared appearance. Darpan on being questioned by the Sub-Inspector explained that these stains had been caused when she went to her daughter''s cot and also when she held the girl''s child in her arms. The stains are not inconsistent with this statement.

It is now necessary to refer to the inter. View between the Sub-Inspector and the girl Titwa at the Sarath hospital where he was summoned by the doctor with the information that the girl was in a serious condition. He found her unable to speak and recorded his own questions in the vernacular, but he has stated that the replies were by signs only. He does not describe the signs more particularly than by stating that they were by waving of the hands and movement of the head, and there is the gravest doubt whether in the circumstances the so-called dying declaration can be admitted into evidence. It was not his function to record merely his interpretation of the signs, but he should have recorded the precise nature of the signs, leaving the interpretation to the tribunal: see AIR 1937 24 (Privy Council) . Even if the interpretation placed by the Sub-Inspector on the signs is correct, it would seem that the meaning of the dying girl was that she had in fact been assaulted by the person Dhano Poddar whom we have mentioned as one of the party who came to the thana with Darpan and her daughter, as well as by Darpan. This interpretation also seems to have been placed upon the signs by the witness Muhammad Hakeem Mirza (P.W. 11). Dhano was arrested and put on trial with Darpan. He was however acquitted, the Judge being of opinion that the dying girl did not properly understand the nature of the questions put to her in respect of this man. The supposed dying declaration may now be examined in detail. It is printed at page 42 of the paper-book in the form of questions and answers.

The first question put by the Sub-Inspector was "who have assaulted you the Mians or the Mirzas or the Poddars?" The question in this form is highly objectionable and it is difficult to understand why the Sub-Inspector was confining the assailants to these three categories. The answer recorded is "by making signs with her hand she expressed that the Poddars had assaulted her". The Sub-Inspector has not given a description of the signs from which he could infer that the woman intended to refer to the Poddars.

The second question which was put is as follows: "Which Poddar did assault you" and then the name of 13 Poddars are mentioned including Dhano Poddar. The answer recorded is as follows: "By making signs with her hand and by a movement of her head she expressed that Dhano Poddar had assaulted her". Here again the Sub-Inspector has not given a description of the signs which the injured person is stated to have made with her hand nor is it clear how the movement of her head was interpreted by the Sub-Inspector to refer to Dhano Poddar.

The next question put was:

Why had he assaulted you--to obtain money or out of enmity or with the object of outraging your modesty?

The answer recorded is "by making signs with her hand she expressed that he assaulted her with the object of outraging her modesty". Again there is a complete absence of any description of the sign which was interpreted by the Sub-Inspector to mean an intended outrage of modesty.

The fourth question put was "How could you recognize Dhano Poddar? Was a dibia burning or was it dark"? The answer recorded is "by making signs with her hand and by moving her bead she expressed that dibia was burning".

It is difficult for us to understand how by making signs with her hand and by moving her head the woman could have expressed that the dibia was burning. It was necessary for the Sub-Inspector to have given a description of the signs and of the movements of the head which led him to believe that the woman intended to say that the dibia was burning. The fifth question is recorded in this manner "showed Dhano Poddar to her and asked, who had assaulted you? Also showed her the other Poddars of the village". The answer is recorded as follows:

Seeing Dhano Poddar, she expressed by moving her hand and head that the very same Dhano Poddar had assaulted her and seeing the others she expressed by a movement of her hand and head that they had not assaulted her.

It is to be seen that here again the Sub-Inspector has not recorded a description of the movements which led him to infer that the woman was definite in identifying Dhano as the person who had assaulted her. It will also be noticed that in none of these five questions and answers the woman is at all speaking of or indicating the mother as her assailant. The last question put by the Sub-Inspector is very important and is this: "Who else did assault you"? The answer is recorded as follows: "Seeing her mother she expressed by making signs with her hand that she also had assaulted her". It is difficult for us to understand from this very brief record in which there is complete absence of any description of the signs stated to have been made by the deceased that the Sub-Inspector was able to infer that the mother had also assaulted the daughter.

In our opinion the dying declaration so recorded is very unsatisfactory and is indeed inadmissible in law. But if it were admissible, it points far more clearly to the guilt of Dhano than to the complicity of Darpan. Dhano however has been acquitted by the Sessions Judge. The Sub-Inspector states that until he had recorded the supposed dying declaration, he had not examined anyone else of the party save Darpan. He then examined Barjoo Poddar and the other men who had accompanied the party and later Bhagirath Poddar (P.W. 9), husband of the accused and father of the deceased girl Titwa, who states that on the Thursday (the 18th) he had set out from the village leaving Darpan, Titwa and her child and his own son Jiblal in the house and had gone to Sarsa 7 or 8 miles away and that he returned home on the Friday (the 19th) in the morning. Then on his way back he had met Rafiuddin Mirza (P.W. 5) and had a talk with him and that on reaching home he had found Jiblal (his son) with Titwa''s baby and that Jiblal began crying and told him "didi ka mar dehis mayia" and that Titwa had been taken to the thana.

He stated further in evidence that Seven days before the occurrence he had lost a knife which he had never found again and he further stated that he mentioned this to the police on the first occasion. The Sub-Inspector however says that this is not true and that Bhagirath said nothing about the knife either on that occasion or on the occasion of a sub-sequent questioning on the 21st. This point is of importance because no trace of a weapon has been found and indeed no search seems to have been made for one. At 8 A.M. the Sub-Inspector received information from the dispensary that Titwa was dead. He went to the hospital and prepared an inquest report and sent off the corpse to Deoghar for post mortem examination. He then arrested Dhano and Darpan and submitted a charge sheet against them and left for the village where he arrived at midday. He first examined the house of Bhagirath Poddar and found blood stains on walls and the verandah and prepared a sketch, and the first person whom he examined was the boy Jiblal.

The boy when examined by the Sessions Judge gave a very detailed statement beginning with the fact that his father had left the house at about noon of the same day for Sarsa and that his elder brothers had also left the house. He stated that his mother and Titwa usually slept in the kitchen and that on that same night his mother had suggested to Titwa that they should Bleep on the verandah. Therefore he slept with his mother on a cot on the verandah and Titwa slept with her child on the same verandah on another cot. There was no light on the verandah then. The cot upon which Titwa slept was on the verandah and the cot on which Jiblal and his mother slept was a few feet away at right angles to the first cot. That he woke up at about 1 or 2 A.M. hearing the cry of Titwa "Asire Baboo hamre jan marlak". His mother was not on the cot with him. He covered himself up with his cloth and then he heard a sound of "Hun Hun" which he recognised as his mother''s voice. He says she was hitting someone with force, and then he heard his sister''s cry "Hai re bap Hai re bap" and that this went on "for a long time". He uncovered his face and called his mother several times and saw her go from the verandah to the court-yard. On being questioned as to how he recognized his mother, he said, by the moonlight. He related that his mother said that the thief had wounded his sister and she advised him to come away. He asked his mother to bring a light which she brought from the kitchen and he carried it near his sister his mother remaining in the kitchen. By the aid of the light, he saw Titwa and found her covered with blood, and returned to the court-yard. He wished to raise an alarm, but his mother stopped him saying that if he raised an alarm the thieves would beat him, but he continued to shout. Nobody came however and he went to the door of the house adjoining the road and shouted from there, whereupon Barjoo Poddar, Moti Poddar, Bhola Poddar and others arrived. Barjoo and Moti left the place to call the village chaukidar where Upon the chaukidar, Rafiuddin Mirza and Hakeem Mirza came up. Rafiuddin asked Titwa who had injured her and she replied in a faltering tone that she had been injured by her mother. Rafiuddin asked the mother to give her water, but Titwa turned her face away and waved her hand thereby declining the offer. Then Barjoo Poddar offered her water which Titwa drank. The accused Dhano came last of all when called by Hakeem Mirza. Rafiuddin sent Titwa away on the same khatia to the hospital. The witness however did not go. The next morning his father returned home and the witness told him that his mother had assaulted his sister. He further stated that there were quarrels between the mother and Titwa and the last quarrel took place four or five days before the occurrence and that Titwa only uttered the words "Hai Baboo jan marlek".

Now the witness does not state that he related what he had seen to any of the persons present, and there is no indication that he mentioned what he had seen to anybody until he made a statement to his father much later in the day which followed the night in question. It is truly astonishing that the advocate for the defence whose cross-examination of all the witnesses was of a most incompetent character did not ask any questions with a view to finding out when the boy first told his story. That some kind of story by Jiblal reached the police indirectly through Bhagirath Poddar (his father) who came to the station is true; but there was no attempt whatever to obtain either from Bhagirath Poddar or from the police what story Jiblal had related, save the statement which we have quoted earlier "Didi ke mardihis maiya" (my mother struck my sister).

It is remarkable that the Sub-Inspector appears to have made no search whatever for the weapon with which the crime was committed. According to the evidence of Jiblal and of all the other witnesses the mother did not leave the premises from the moment of the commission of the crime until long after the neighbours had arrived and that she was throughout within sight of everybody and it is difficult to see how she could have disposed of a knife or any other weapon. Moreover if the injuries were inflicted with a knife as is indicated by their nature, it is extremely probable that her hands would have become covered with blood but there is not the slightest suggestion of any such state of affairs nor had she any opportunity of cleansing her hands unobserved, Why this point was not made by the defence is difficult to understand. It is an extremely obvious one and must again be attributed to the incompetence of the defence.

Now the evidence of what happened on the arrival of the neighbours was offered by the following witnesses. Rafiuddin Mirza is the Pradhan of the village. He states that he was roused up by the chaukidar Raghoo Mirdha and other persons with the statement that there had been a murder in the house of Bhagirath Poddar about three or four rasis from his own house. He went there and found ten or eleven persons at Bhagirath''s house, some on the verandah and some in the angan, and he saw Jiblal on the verandah. He made no enquiries either from Jiblal or Darpan. He found Titwa''s body covered with blood and marks of blood on the ground and on the walls. He did not go very close to the cot of Titwa. He asked Titwa who assaulted her. She replied in a low tone "Kaka hamre maiya marlek" (Uncle, my mother assaulted me). She then made signs that she wanted to drink water and she also asked in a very low tone for water. Her mother brought some bat Titwa slightly turned her face away. The witness then asked Barjoo to offer her water, whereupon Titwa drank it. He then asked her again "Well Nonia, who has assaulted you", whereupon she gave the same reply as before. He then sent Titwa to the Sarath thana with her relations. At that time it was still dark and Titwa was conscious. If the evidence of Rafiuddin be aooepted, it is astonishing that he did not take Darpan into custody and send her as a prisoner to the thana, and it was even more astonishing that the persons Barjoo Poddar and Moti Poddar, who claim also to have heard the daughter accuse her mother, did not themselves inform the Sub-Inspector immediately on their arrival at the thana but allowed Darpan to lodge the first information. The learned Judge passes somewhat lightly over this curious circumstance with the observation that this is the sort of thing which goes on in the district and is not very surprising. Barjoo denies that there was any consultation as to who should lodge the information either at the place of occurrence or on the road to the thana. There is some discrepancy between the account given by Barjoo and that given by Rafiuddin as to what happened at the place of occurrence. Barjoo heard Rafiuddin ask her as to who had assaulted Titwa and heard her voice in reply but could not follow her voice; after drinking the water he heard her say "maiya marlek". There is no doubt from the evidence that Darpan had been for at least a year past accusing her husband of carrying on an intrigue with his own daughter Titwa. This accusation may or may not be true, but Bbagirath himself stated that Darpan had so accused him at the first interview with the Sub-Inspector at the thana and there can be no doubt that Darpan was much troubled by this belief, whether true or not. It is also dear that the management of Bhagirath''s household had been taken by him out of the hands of Darpan and entrusted to his daughter. There are also indications that this had worked upon the mind of Darpan and she was in a constant state of resentment against her daughter.

Now summing up the evidence against Darpan, it would seem to consist of the following facts: firstly, motive to which I have just referred; secondly, the blood stains on her clothing and face, but this can be accounted for by her contact with the injured girl and the child; thirdly, the supposed dying declaration taken by the Sub-Inspector at the hospital, but we are of opinion that this is in the circumstances inadmissible; fourthly, the evidence as to the statements made by Titwa to the neighbours, but this conflicts with the supposed dying declaration in the matter of the accusation against Dhano. Moreover, the refusal of the water at the hands of Darpan, even if true, might be explained on many other grounds. Furthermore, it is astonishing that the Pradhan and the neighbours should not have arrested Darpan and sent her in custody to the thana and that the chaukidar should not himself have lodged the first information but have allowed Darpan to do this. Lastly, there is the evidence of the boy Jiblal; and if the other points which I have mentioned are rejected, it would be quite unsafe to convict on the evidence of a child ten years old, more especially as he does not seem to have told anyone of his experience until the day time when he said something to his father, The evidence of children unless immediately available and unless received before, any possibility of coaching is eliminated is notoriously dangerous.

In favour of the accused is the fact that no weapon has been found and it is difficult to see how she could have any opportunity of concealing the weapon in any place where it would not have been immediately found even on the most perfunctory search; secondly, the fact that her hands and arms showed no blood stains and there was no possibility of her having removed such blood stains. We must further remember that a quarrelsome old woman with a very pronounced and scandalous grievance is a highly unpopular member of a village community and the more so if the grievance is unfounded. We cannot exclude from consideration the possibility that the villagers may have combined to screen the real murderer at the expense of this woman.

For these reasons we are of opinion that it would be unsafe to maintain the conviction, and we direct that the reference be discharged, the appeal allowed and the appellant be set at liberty.

We desire to make some remarks about the defence of prisoners who are too poor to instruct lawyers on their own account. Those whose duty it is to select lawyers to defend at the expenses of the Crown should not treat the selection as a matter of patronage for the benefit of the lawyer so appointed. The selection should be made from among young men of marked ability. We have frequently observed that the persons actually appointed do their work very badly and conspicuous opportunities for cross-examination and obvious'' arguments are entirely ignored. In such circumstances also the trial Judge should remember that he has the duty not only to prosecution but to the defence. He has the police diary in front of him and should use his greater experience to cross-examine the witnesses when he sees that the defence lawyer is incompetent. He should not do this unnecessarily but only when it is desirable in the interest of justice.